holding that officer was not entitled to qualified immunity where he acted “on a mission of his own creation, abandoning his assignment . . . for no apparent reason except the excitement of the chase”
How later courts described this case
- holding that officer was not entitled to qualified immunity where he acted “on a mission of his own creation, abandoning his assignment . . . for no apparent reason except the excitement of the chase”
- holding the officers’ use of force was reasonable where, despite driving at a slow speed, the driver ignored police commands and attempted to accelerate within close quarters of officers and where the vehicle “could have gained traction at any time”
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 6 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA ELENA VASQUEZ, individually No. 22-16691
and as co-successor-in-interest to Decedent
JENNIFER VASQUEZ; JOSE DE JESUS D.C. No. 5:19-cv-08441-EJD
RAMOS, individually and as co-successor-
in-interest to Decedent JENNIFER
VASQUEZ, MEMORANDUM*
Plaintiffs-Appellants,
v.
CITY OF SAN JOSE, a municipal
corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted January 10, 2024**
San Francisco, California
Before: SILER,*** CLIFTON, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Family members of decedent, Jennifer Vasquez, appeal the district court’s
dismissal of their Fourth Amendment and state law claims against the City of San
Jose. The district court granted the City’s motion for summary judgment on
Appellants’ Fourth Amendment claim, holding that police officers’ use of lethal
force against Vasquez was constitutionally reasonable and shielded from liability
via the qualified immunity doctrine. It also dismissed Appellants’ pendent state
law claim, declining to exercise discretionary supplemental jurisdiction. Because
we assume the parties’ familiarity with the facts, we do not recount them here. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
1. Qualified immunity protects officers sued under 42 U.S.C. § 1983 from suit
“unless (1) they violated a federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was clearly established at the time.” District of
Columbia v. Wesby, 583 U.S. 48, 62–63 (2018) (quotations omitted). We exercise
our discretion to decide only whether the alleged unlawfulness of the officers’
conduct was clearly established at the time of the use of force,1 Plumhoff v.
Rickard, 572 U.S. 765, 774 (2014), and conclude that it was not.
1
To the extent the parties cite to cases decided after December 25, 2018, the date
of the relevant conduct, see, e.g., Villanueva v. California, 986 F.3d 1158 (9th Cir.
2021); Orn v. City of Tacoma, 949 F.3d 1167 (9th Cir. 2020); Monzon v. City of
Murrieta, 978 F.3d 1150 (9th Cir. 2020), we do not consider them as relevant to
the analysis of the “clearly established” prong of the qualified immunity test. See
Columbia, 583 U.S. at 62–63.
2
In Plumhoff, the Supreme Court held that officers acted reasonably in using
deadly force where, after a high-speed chase, the escapee’s car hit a police cruiser
and his “tires started spinning . . . indicating that [he] was using the accelerator
even though his bumper was flush against a police cruiser.” Id. at 770. The Court
held that the record “conclusively disprove[d] respondent’s claim that the chase . . .
was already over when petitioners began shooting” because the driver was
“obviously pushing down on the accelerator.” Id. at 776–77.
The same is true in the present case, where the video evidence conclusively
establishes that even if the signpost and the cruiser prevented Vasquez’s immediate
escape, “a reasonable police officer could have concluded that [she] was intent on
resuming [her] flight and that, if [she] was allowed to do so, [she] would once
again pose a deadly threat for others on the road.” See id. at 777.2 Given the close
similarities between Plumhoff and the instant case, the illegality of the officers’
conduct here could not have been “clearly established.” See also Wilkinson v.
Torres, 610 F.3d 546, 551–52 (9th Cir. 2010) (holding the officers’ use of force
was reasonable where, despite driving at a slow speed, the driver ignored police
commands and attempted to accelerate within close quarters of officers and where
the vehicle “could have gained traction at any time”).
2
The panel grants the parties’ separate motions to include five video files and one
audio file in the record.
3
None of Appellants’ proffered cases suggest otherwise. See, e.g., Adams v.
Speers, 473 F.3d 989, 993 (9th Cir. 2007) (holding that officer was not entitled to
qualified immunity where he acted “on a mission of his own creation, abandoning
his assignment . . . for no apparent reason except the excitement of the chase”);
Acosta v. City and Cnty. of San Francico, 83 F.3d 1143, 1144 (9th Cir. 1996) as
amended (June 18, 1996), abrogated on other grounds by Saucier v. Katz, 533 U.S.
194 (2001) (holding that officer was not entitled to qualified immunity in a case
which involved no car chase and officers had no reason to believe decedent was
armed). At the very least, those cases put the officers’ conduct here in the “hazy
border” between excessive and constitutional force, entitling the officers to
qualified immunity. Saucier, 533 U.S. at 206.
2. Because Appellants only ask us to reinstate their pendent state claims if we
reverse as to qualified immunity, we decline to do so.
AFFIRMED.
4